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BGH: Doctor in the compensation dispute but not defenseless
Karlsruhe (jur). Doctors who do not carry out the examinations offered according to the state of affairs make a serious “diagnosis error”. In the event of a lawsuit, this leads to a reversal of the burden of proof in favor of the patient, as the Federal Court of Justice (BGH) in Karlsruhe emphasizes in a judgment published on Friday, April 8, 2016 (file number: VI ZR 146/14). After that, the courts still have to investigate other possible causes of health damage.
The plaintiff suffers from the most serious damage to health, which he attributes to an oxygen deficiency during his birth. He accuses his mother's gynecologist of not having recognized a so-called HELLP syndrome. This is a major change in the blood picture associated with a liver dysfunction, with the letters HELLP standing for the changed blood parameters.
Specifically, the mother had increased blood pressure, massive nosebleeds and increased protein excretion in the urine at the end of her pregnancy. The gynecologist diagnosed only a "slight increase in blood pressure" without having to carry out further examinations.
The BGH has now made it clear that this is not a mistake in diagnosis, but rather an "assessment error". Because the reason for the misdiagnosis is "that the doctor did not even initiate the examinations according to the medical standard". This could lead to a reversal of the burden of proof in favor of the patient if the medical failure "with sufficient probability" is the cause of later damage to health.
Such a reversal of the burden of proof applies to "gross treatment errors". Then the doctor has to prove that his mistake was not the cause of later damage to health. If he does not succeed, the cause of the error is assumed in favor of the patient.
Here, the gynecologist was not allowed to leave the diagnosis of increased blood pressure, but had to have further examinations, the BGH emphasized. This leads to a reversal of the burden of proof.
Nevertheless, the courts would also have to collect the necessary "findings". Here, the expert had stated that the plaintiff's current damage to health could probably have been avoided by giving birth earlier. According to the report, the cause of the damage to health could also be brain damage due to an infection.
Although the gynecologist relied on this and also asked for an expert opinion, the Higher Regional Court (OLG) in Munich did not investigate this further. The OLG should now make up for this. Because the reversal of the burden of proof does not deprive the doctor of the opportunity to “prove the opposite,” says the judgment of January 26, 2016, which has now been published in writing. (Mwo / fle)